FILED: NEW YORK COUNTY CLERK 06/26/2014 INDEX NO. 155133/2013 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/26/2014 EXHIBIT NO. 6 (Fourteenth Amendment)
^i 1 STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL ANDREW M. CUOMO (212)416-6384 Crp/Extell Parcel H, L.P. c/o Stroock & Stroock & Lavan, LLP Attention: Pamela Troy 180 Maiden Lane New York, NY 10038 RE: Avery File Number: CDO504 67 Amendment No: 14 Date Amendment Filed: 01/07/2010 Filing Fee: $225.00 Receipt Number: 101882 Dear Sponsor: The referenced amendment to the offering plan for the subject premises is hereby accepted and filed. Since this amendment is submitted after the post closing amendment has been filed, this filing is effective for twelve months from the date of filing of this amendment. However, any material change of fact or circumstance affecting the property or offering requires an immediate amendment. Any misstatement or concealment of material fact in the material submitted as part of this amendment renders this filing void ab initio. This office has relied on the truth of the certifications of sponsor, sponsor's principals, and sponsor's experts, as well as the transmittal letter of sponsor's attorney. Filing this amendment shall not be construed as approval of the contents or terms thereof by the Attorney General of the State of New York, or any waiver of or limitation on the Attorney General's authority to take enforcement action for violation of Article 23-A of the General Business Law or other applicable law. The issuance of this letter is conditioned upon the collection of all fees imposed by law. This letter is your receipt for the filing fee. Very truly yours, 120 Broadway, New York, N,Y. 10271-0332 - Phone (212) 416-8122 - Fax (212) 416.8179 http:ffwww.oag.state.ny.us
FOURTEENTH AMENDMENT TO CONDOMINIUM OFFERING PLAN AVERY 100 RIVERSIDE BOULEVARD NEW YORK, NEW YORK 10069 DATED: JANUARY 7, 2010 NY 71867920v4
TABLE OF CONTENTS Section P aye Introduction...1 1. 2. 3. 4. 5. 6. 7, 8. 9, 10. 11, 12. SpecialRisks............... 1 Procedure to Purchase... Powerof Attorney... Financial Update of Sponsor... ResidentialBoard... Financial Statements... Budget... Location and Area Information... Definitions... Incorporation of the Plan... NoMaterial Changes...... 3... 5... 5......I... 7......I... 7... 7... 7... 8... 8... 8 Eff ectzve P te110 d f 01 U sing ' th a Pl an is Ex ended... X Exhibits A Agreement B Power of Attorney C Schedule of Unsold Residential Units D List of Other Buildings of Sponsor or Sponsor's Principal(s) E Financial Statements F Budget G Certification of Sponsor's Expert Concerning the Adequacy of the Budget and the Certification by Expert Concerning Adequacy of Common Charges Payable by the Commercial Unit Owner -i- NY 71867920v4
FOURTEENTH AMENDMENT TO CONDOMINIUM OFFERING PLAN AVERY INTRODUCTION This Fourteenth Amendment modifies and supplements the terms of the Condominium Offering Plan for Avery, 100 Riverside Boulevard, New York, New York 10069, dated February 27, 2006, as amended by the First Amendment thereto dated March 10, 2006, the Second Amendment thereto dated April 17, 2006, the Third Amendment thereto dated April 20, 2006, the Fourth Amendment thereto dated April 21, 2006, the Fifth Amendment thereto dated May 18, 2006, the Sixth Amendment thereto dated October 5, 2006, the Seventh Amendment thereto dated March 22, 2007, the Eighth Amendment thereto dated April 13, 2007, the Ninth Amendment thereto dated June 20, 2007, the Tenth Amendment thereto dated October 9, 2007, the Eleventh Amendment thereto dated November 12, 2007, the Twelfth Amendment thereto dated May 1, 2008, and the Thirteenth Amendment thereto dated November 5, 2008 (the "Plan") and should be incorporated into and read in conjunction with the Plan. The terms of this Fourteenth Amendment are as follows: 1. SPECIAL RISKS Sponsor hereby amends Paragraphs 1, 2 and 3 of the Section of the Plan entitled "Special Risks" for any Purchaser entering into an Agreement subsequent to the date of this Amendment by deleting the same in their entirety and replacing the same with the following: "1. At the time an Agreement is executed, a Purchaser is required to make a Deposit in an amount equal to fifteen percent (15%) of the Purchase Price (the "Deposit"). In the event a Purchaser defaults under the Agreement, TIME BEING OF THE ESSENCE with regard to the obligations of the Purchaser thereunder, and does not cure such default within thirty (30) days after Sponsor gives written notice to the Purchaser of such default, Sponsor may, at its option, either (i) terminate the Agreement by written notice of termination to Purchaser and retain the Deposit and all other sums deposited by Purchaser under the Agreement (including, without limitation, any amounts deposited and/or paid for custom work to the Unit), together with interest earned thereon as liquidated damages, it being acknowledged and agreed that it is extremely difficult and impracticable to ascertain the extent of detriment to Sponsor caused by the breach by Purchaser under the Agreement and the failure of the consummation of the transaction NY 71867920v4
contemplated by the Agreement or the amount of compensation Sponsor should receive as a result of Purchaser's breach or default; or (ii) bring an action against Purchaser for specific performance; or (iii) terminate the Agreement by written notice of termination to Purchaser and bring an action for damages; or (iv) exercise all other remedies available to Sponsor at law or in equity. Upon termination of the Agreement, Purchaser shall have no further rights thereunder, and Sponsor may sell the Unit to any third party as though the Agreement had never been made (without any obligation to account to Purchaser for any part of the proceeds of such sale). Additionally, if a Purchaser fails for any reason to close title to the Residential Unit on the originally scheduled Closing Date and Sponsor elects not to cancel the Purchaser's Agreement as a result of the same, (a) the closing apportionments to be made at the Closing will be made as of midnight of the day preceding the originally scheduled Closing Date, and (b) the Purchaser will be required to pay to Sponsor an amount equal to 0.03% of the Purchase Price of the Residential Unit for each day that the Closing is adjourned. Purchasers are further advised that (i) if a Purchaser makes a Deposit in excess of $250,000 for the purchase of a Unit, such Deposit will not be federally insured in excess of $250,000; and (ii) if a Purchaser has any additional accounts in Bank of America, the funds in said accounts will be added together with the Deposit held in escrow and the total will only be insured up to the $250,000 FDIC maximum coverage. On January 1, 2014, FDIC deposit insurance for all Deposit accounts at FDIC-insured institutions including Bank of America will return to at least $100,000 per Deposit. Accordingly, all Purchasers are advised that commencing on January 1, 2014 any Deposit made by any Purchaser prior to or after January 1, 2014 in excess of $100,000 for the purchase of a Unit will not be federally insured in excess of $100,000; further, if a Purchaser has any additional accounts in Bank of America, the funds in said accounts will be added together with the Deposit held in escrow and the total will not be federally insured in excess of $100,000. Funds drawn on out-of-state or foreign banks will not be accepted in payment of the Purchase Price for a Unit unless otherwise agreed by Sponsor. The Agreement provides that Purchaser shall be obligated to reimburse Sponsor for any legal fees and disbursements incurred by Sponsor in defending or enforcing Sponsor's rights under the Agreement or, in the event Purchaser defaults under the Agreement beyond any applicable grace period, in canceling the Agreement or otherwise enforcing Purchaser's obligations thereunder. THE AGREEMENT ALSO PROVIDES, IN CLEAR AND EXPLICIT TERMS, THAT EXCEPT AS PROHIBITED BY LAW, THE PARTIES WAIVE TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF, OR CONNECTED WITH, OR RELATING TO, THE PLAN, THE AGREEMENT OR THE RELATIONSHIP CREATED HEREBY. (See the Section entitled "Procedure to Purchase" for further discussion of the foregoing.) 2. Although a Purchaser may obtain financing from a lending institution or any other source, the obligation to purchase a Residential Unit pursuant to the Agreement NY 71867920v4
shall not be contingent on obtaining financing for such purchase. Neither Sponsor nor the Selling Agent makes any representations as to the terms or availability of any mortgage financing. Prospective Purchasers are, therefore, advised to finalize their financing arrangements before signing an Agreement. However, prospective Purchasers should be aware that even if a loan commitment is obtained, its term may be fixed, and it could expire before the Closing Date and a Purchaser would have to close without financing or risk losing such Purchaser's Deposit. In addition, given the current economic situation, a lending institution could withdraw its commitment if it believes a purchaser's financial condition has worsened or that the Residential Unit's appraised value has decreased. (See the Section entitled "Procedure to Purchase" for further details.). 3. Prior to the closing of title to a Residential Unit, the Agreement prohibits a contract vendee from listing the Residential Unit for resale or rental directly and/or with any broker or from advertising or otherwise offering, promoting or publicizing the availability of the Unit for sale or lease, without Sponsor's prior written consent. In addition, if Purchaser shall not be purchasing the Unit for its own occupancy, Purchaser may not advertise, list or sell the Unit for twelve (12) months after acquisition of the Unit (provided however, such limitation shall not apply from and after the date that the Sponsor conveys title to all of the Residential Units). Any such conveyances in violation of the foregoing will be voidable by Sponsor. The following paragraph shall be added to the Special Risks Section of the Plan as Paragraph 64. The current Paragraph 64 shall be renumbered as Paragraph 65: 64. If Sponsor, in its sole discretion, consents to a Purchaser's request for an assignment of the Agreement, or for the addition, deletion or substitution of names on the Agreement, then Purchaser will be required to pay Sponsor's attorneys a fee of $1,000.00 in advance, for preparation of an assignment agreement. Any purported assignment by Purchaser in violation of the Agreement will constitute an Event of Default thereunder and will be voidable by Sponsor. Sponsor's refusal to consent to an assignment will not entitle Purchaser to cancel the Agreement or give rise to any claim for damages against Sponsor. THE FOREGOING IS HEREBY DEEMED TO BE AN AMENDMENT TO THE "SPECIAL RISKS" SECTION OF THE PLAN AND IS HEREBY INCORPORATED THEREIN. THE ABOVE SPECIAL RISKS DO NOT APPLY TO THOSE PURCHASERS OR UNIT OWNERS WHO ENTERED INTO AN AGREEMENT PRIOR TO THE DATE OF THIS AMENDMENT. 2. PROCEDURE TO PURCHASE Sponsor hereby amends the Plan, specifically including, without limitation, certain sections "Special Risks" and "Procedure to Purchase" for any Purchaser entering into an Agreement subsequent to the date of this Amendment to reflect the following: NY 7186792 v4
All Deposit checks must be made payable to the direct order of "STROOCK & STROOCK & LAVAN LLP, ESCROW AGENT." If any Deposit check is returned for insufficient funds or any other reason, Sponsor at its option, may declare the Agreement void ab initio and of no further force and effect, and either (i) may institute an action against Purchaser for the collection of the Deposit as liquidated damages, or (ii) may declare a default or an Event of Default by Purchaser under the Agreement which shall entitle Sponsor to exercise any of the remedies set forth in Article 15 of the Agreement. The balance of the Purchase Price shall be payable simultaneously with the delivery of the deed to the Residential Unit by an official bank check or an unendorsed certified check drawn on or issued by a New York bank or trust company which is a member of The New York Clearinghouse Association, or at Sponsor's election, upon not less than three (3) days' prior written notice, by wire as directed by Sponsor. Checks for the balance of the Purchase Price shall be made payable by good certified check of Purchaser or official bank check to the direct order of "CRP/EXTELL PARCEL H, L.P." or such other party as Sponsor may designate upon not less than two (2) days prior notice. The deed will be substantially in the form set forth in Part II of the Plan. Interest, if any, on Purchaser's Deposit will be credited or paid to Purchaser at Closing. TIME IS OF THE ESSENCE with regard to Purchaser's obligations to pay the balance of the Purchase Price and to perform Purchaser's other obligations under the Agreement. If there is any Event of Default (as such term is defined in the Agreement), Sponsor shall give written notice to Purchaser of such Event of Default. If such Event of Default shall not be cured within thirty (30) days thereafter, TIME BEING OF THE ESSENCE, Sponsor may either (i) terminate the Agreement by written notice of termination to Purchaser and retain the Deposit and all other sums deposited by Purchaser under the Agreement (including, without limitation, any amounts deposited and/or paid for custom work to the Unit), together with interest earned thereon as liquidated damages, it being acknowledged and agreed that it is extremely difficult and impracticable to ascertain the extent of detriment to Sponsor caused by the breach by Purchaser under the Agreement and the failure of the consummation of the transaction contemplated by the Agreement or the amount of compensation Sponsor should receive as a result of Purchaser's breach or default; or (ii) bring an action against Purchaser for specific performance; or (iii) terminate the Agreement by written notice of termination to Purchaser and bring an action for damages; or (iv) exercise all other remedies available to Sponsor at law or in equity. Upon termination of the Agreement, Purchaser shall have no further rights thereunder, and Sponsor may sell the Unit to any third party as though the Agreement had never been made (without any obligation to account to Purchaser for any part of the proceeds of such sale). If Sponsor, in its sole discretion, consents to a Purchaser's request for an assignment of the Agreement, or for the addition, deletion or substitution of names on the Agreement, then Purchaser will be required to pay Sponsor's attorneys a fee of $1,000.00 in advance, for preparation of an assignment agreement. Any purported assignment by Purchaser in violation of the Agreement will constitute an Event of Default thereunder and will be voidable by Sponsor. Sponsor's refusal to consent to an assignment will not entitle Purchaser to cancel the Agreement or give rise to any claim for damages against Sponsor. NY 71867920v4
Bank of America is covered by federal bank deposit insurance through the Federal Deposit Insurance Corporation ("FDIC") to a maximum of $250,000 per individual deposit. The following are special risks of this offer: (i) if a Purchaser makes a Deposit in excess of $250,000 for the purchase of a Unit, such Deposit will not be federally insured in excess of $250,000; and (ii) if a Purchaser has any additional accounts in Bank of America, the funds in said accounts will be added together with the Deposit held in escrow and the total will only be insured up to the $250,000 FDIC maximum coverage. In accordance with the Temporary Liquidity Guarantee Program adopted by the FDIC in November 2008, funds held in the non-interest bearing Master Account are fully insured through and including December 2013. On January 1, 2014, FDIC deposit insurance for all Deposit accounts at FDIC-insured institutions, including Bank of America, will return to at least $100,000 per Deposit and the non-interest bearing Master Account will no longer be fully insured. Accordingly, all Purchasers are advised that commencing on January 1, 2014 any Deposit made by any Purchaser prior to or after January 1, 2014 in excess of $100,000 for the purchase of a Unit will not be federally insured in excess of $100,000. Annexed hereto as Exhibit A is a revised Agreement. The attached will replace the Agreement in Part 1I of the Plan in its entirety for any Purchaser entering into an Agreement subsequent to the date of this Amendment. Any references to the contrary to disclosures in the Plan and/or the form of Agreement set forth as an Exhibit in Part II of the Plan are hereby deemed superseded in their entirety. For those Purchasers or Unit Owners who entered into a Purchase Agreement prior to the date of this Amendment, the "Procedure to Purchase" Section set forth in the Plan and their respective Agreements remain in full force and effect. Any references which are not contrary to disclosures in the Plan and/or the form of Agreement set forth as an Exhibit in Part II of the Plan shall remain in full force and effect. 3. POWER OF ATTORNEY As more particularly set forth in Article 17 of the Condominium Declaration, each Residential Unit Owner shall grant to the Condominium Board and the Residential Board an irrevocable power of attorney, coupled with an interest (annexed as Exhibit E to the Declaration or otherwise in such form and content as the Condominium Board and the Residential Board shall determine), The Power of Attorney currently being utilized by the Condominium Board is annexed hereto as Exhibit B. 4. FINANCIAL UPDATE OF SPONSOR A. Ownership of Unsold Residential Units Annexed hereto as Exhibit C is a schedule of all Residential Units which were owned by the Sponsor as of October 1, 2009 ("Unsold Residential Units"). As of October 1, 2009, the aggregate monthly Common Charges payable by the Sponsor to the Condominium with respect to the Unsold Residential Units equals approximately $7,288.00. NY 71867920v4
The aggregate monthly real estate taxes paid by the Sponsor with respect to the Unsold Residential Units is approximately $238,52. Sponsor receives no rental income from the Unsold Residential Units, B. Financial Obligations to the Condominium The Sponsor has no financial obligations to the Condominium, other than the payment of Common Charges and real estate taxes for the Unsold Residential Units. C. Financial Obli gations to Lenders The Property is currently encumbered by certain mortgages (collectively, the "Mortgage") held by HYPO REAL ESTATE CAPITAL CORPORATION, 622 Third Avenue, New York, New York 10017 (the "Mortgagee"). Under the terms of the Mortgage, the net proceeds from the sale of each Residential Unit will be applied to the payment of principal due under the Mortgage in payment of the Release Price. The Mortgagee will release the lien with respect to each Residential Unit being conveyed pursuant to the Plan in accordance with the loan documents reflecting such Mortgage. Sponsor is current in its obligations under the Mortgage. D, Payment of Sponsor Obligations The Sponsor will fund its obligation to pay the monthly Common Charges to the Condominium and real estate taxes from the sale of Unsold Residential Units and other assets of Sponsor. E: Other Properties Annexed hereto as Exhibit D is a list of the other buildings (the "Other Buildings") in which the Sponsor or a principal or affiliate of the Sponsor owns more than ten percent (10%) of the number of Units. The offering plans for these Other Buildings are on file with the Department of Law, 120 Broadway, 23rd Floor, New York, New York and are available for public inspection. The Sponsor and principals of Sponsor are current with respect to its obligations for the Other Buildings. F. Status of Financial Obligations The Sponsor is current on all financial obligations under the Plan, including, but not limited to, Common Charge payments and real estate taxes. The Sponsor has been current with respect to said obligations since the First Closing, NY 71867920v4
G. Control of Condominium Board The Sponsor controls the Condominium Board. The Sponsor has the right to appoint a majority of the members of the Residential Board and the Condominium Board (and therefore control such Boards) for a period ending on the date which is five (5) years from the First Closing unless the Sponsor voluntarily relinquishes such right prior to the expiration of such five year period. After the date which is five (5) years from the First Closing, Sponsor may continue to control the Condominium Board and the Residential Board if it has sufficient votes to elect a majority of the members of the Residential Board. Accordingly during the period ending on the date which is five (5) years from the First Closing, Sponsor could control the Residential Board and the Condominium Board notwithstanding the fact that Sponsor no longer owns Units. H. Status of Working Capital Fund As is more particularly set forth in the Plan, at closing each Purchaser of a Residential Unit is required to contribute to the Working Capital Fund of the Residential Section an amount equal to two (2) month's Residential Common Charges then applicable to each Unit being purchased. The Working Capital Fund is held at Signature Bank, 261 Madison Avenue, #2, New York, New York 10016, As of October 1, 2009, the balance in the Working Capital Fund is approximately $510,482.95. As more particularly set forth in the Plan, the Condominium does not have a reserve fund, 5. RESIDENTIAL BOARD The current members of the Residential Board affiliated with Sponsor are Matthew Lobron, Joe Montano, and Gillian Sutton Cho. The current members of the Condominium Board who are Unit Owners are Slava Hazin and Andrew Levinson. 6. FINANCIAL STATEMENTS 2008. Annexed hereto as Exhibit E are the financial statements for the Condominium for 7. BUDGET Annexed hereto as Exhibit F is a copy of the Budget for 2009. Sponsor's expert has reviewed the updated Budget and has provided Sponsor with a certification of adequacy thereof. Annexed hereto as Exhibit G is the updated Certification of Sponsor's Expert Concerning the Adequacy of the Budget and the Certification by Expert Concerning Adequacy of Common Charges Payable by the Commercial Unit Owner. 8. LOCATION AND AREA INFORMATION Sponsor hereby modifies the Section of the Plan entitled "Location and Area Information" to reflect the fact that Sponsor has been verbally advised that the "catchment" line NY 71867920x4
for Avery is located in the "home zone" area encompassed by Elementary School P.S. 191, located at 210 West 61st Street, New York, New York 10023. Sponsor has not received written confirmation of same. Sponsor believes this information to be true and discloses it in good faith but cannot make any further representations regarding same or whether the "home zone" area of the Avery will be further changed. 9. DEFINITIONS All terms used in this Amendment not otherwise defined herein shall have the meanings ascribed to them in the Plan. 10. INCORPORATION OF THE PLAN The Plan, as modified and supplemented hereby, is incorporated herein by reference with the same effect as if set forth at length. 11. NO MATERIAL CHANGES Except as set forth in this Amendment, there have been no material changes of facts or circumstances affecting the Property or the offering. 12. EFFECTIVE PERIOD FOR USING THE PLAN IS EXTENDED The Plan, as modified and supplemented hereby, may not be used after twelve (12) months following the Filing Date of this Amendment, unless the Plan is further extended or amended. SPONSOR: CRPIEXTELL PARCEL H, L.P. NY 71867920x4
EXHIBIT A AGREEMENT NY 71867920v4
AGREEMENT CRP/EXTELL Parcel H, L.P. Sponsor-Seller TO Purchaser UNIT NUMBER RESIDENTIAL SECTION OF AVERY 100 RIVERSIDE BOULEVARD NEW YORK, NEW YORK 10069 NY 72308628v2
TABLE OF CONTENTS Page 1. The Plan... 1 2. Definitions... 1 3. The Unit... 1 4. Purchase Price... 2 5. Closing of Title... 2 6. Delivery of the Deed and Power of Attorney... 3 7. Fee Title... 3 8. Closing Adjustments and Real Estate Taxes... 3 9. Mortgage Tax Credit... 4 10. Intentionally Omitted... 5 11. Deposit... 5 12. Binding Effect of Declaration, By-Laws and Rules and Regulations... 5 13. Agreement Subject to Mortgage... 5 14. Purchaser's Representations... 5 15. Default by Purchaser... 6 16. Intentionally Omitted... 7 17. Sponsor's Inability to Convey the Unit... 7 18. Fixtures, Appliances and Personal Property... 8 19. Acceptance of Condition of Property... 8 20. Damage to the Unit... 9 21. No Representations... 9 22, Prohibition Against Advertising and Selling... 10 23. Broker... 10 24. Agreement May Not Be Assigned... 10 25. Binding Effect... 11 26. Notices... 11 27. Joint Purchasers... 12 28. Performance by and Liability of Sponsor... 12 29. Further Assurances... 12 30. Agreement Not Contingent Upon Financing... 12 31. Costs of Enforcing and Defending Agreement... 12 32. Severability... 12 33. Strict Compliance... 13 34. Governing Law... 13 35. Waiver of Jury... 13 36. Entire Agreement... 13 37. Certain References... 13 38. Captions... 13 39. Rule of Construction... 13 40. Successors and Assigns... 14 41. No Oral Changes... 14 42, Counterpart Signatures... 14 NY 72308628v2
UNIT NUMBER(S) RESIDENTIAL SECTION OF AVERY 100 RIVERSIDE BOULEVARD NEW YORK, NEW YORK 10069 (to be executed in quintuplicate) This purchase agreement (the "Agreement"), made as of the date on the signature page of the Agreement, between CRP/EXTELL Parcel H, L.P., a Delaware limited partnership, having an office at c/o Extell Development Company, 805 Third Avenue, Seventh Floor, New York, New York 10022 ("Sponsor"), and having an address at ("Purchaser"). WITNESSETH: I. THE PLAN. Purchaser acknowledges having received and read a copy of the Offering Plan for the Residential Section of Avery and all amendments thereto, if any, filed with the Department of Law of the State of New York (hereinafter, collectively, referred to as the "Plan") at least three (3) days prior to Purchaser's signing this Agreement. If Purchaser has not received and read the Plan and all amendments thereto at least three (3) full days prior to Purchaser's signing this Agreement, Purchaser shall have the right to rescind this Agreement within seven (7) days from the date Purchaser signs and delivers this Agreement to Sponsor. The Plan is incorporated herein by reference and made a part hereof with the same force and effect as if set forth at length. In the event of any inconsistency between the provisions of this Agreement and the Plan, the provisions of the Plan will govern and be binding except where such provisions were requested by Purchaser and agreed to by Sponsor. 2. DEFINITIONS. Terms used herein which are also used in the Plan shall have the sane meanings herein as therein unless the context otherwise requires. 3. THE UNIT. Upon and subject to the terms and conditions set forth herein, Sponsor agrees to sell and convey, and Purchaser agrees to purchase, the unit ("Unit") to be designated as Unit in the Plan, together with the percentage undivided interest in the General Common Elements of the Condominium appurtenant thereto. NY 72308628v2-1-
4. PURCHASE PRICE. 4.1 The purchase price for the Unit ("Purchase Price") is $ The Purchase Price is payable as follows: (a) $ (the "Deposit"), due upon Purchaser's signing and submitting this Agreement, by check (subject to collection), receipt of which is hereby acknowledged. (b) $, constituting the balance of the Purchase Price (the "Balance"), payable on the delivery of the deed as hereinafter provided. 4.2 The Balance shall be paid by official bank check or an unendorsed certified check drawn on or issued by a New York bank or trust company which is a member of The New York Clearinghouse Association or, at Sponsor's election, upon not less than three (3) days' prior written notice, by wire as directed by Sponsor. Checks for the Deposit shall be made payable to "Stroock & Stroock & Lavan LLP, Escrow Agent." Checks for the Balance shall be made payable by good certified check of Purchaser or official bank check to the direct order of "CRP/EXTELL Parcel H, L.P." or such other party as Sponsor may designate upon not less than two (2) days prior notice. If any Deposit check is returned for insufficient funds or any other reason, Sponsor at its option, may declare this Agreement void ab initio and of no further force and effect, may institute an action against Purchaser for the collection of the Deposit as liquidated damages or may declare a default or an Event of Default by Purchaser under this Agreement which shall entitle Sponsor to exercise any of the remedies set forth in Article 15 hereof. 5. CLOSING OF TITLE. 5.1 The closing of title shall be held on _, 2009 at am at the offices of Extell Development Company, 805 Third Avenue, Seventh Floor, New York, New York 10022, or at such other place in the City and State of New York as Sponsor may designate. If Sponsor consents to close at any other location as an accommodation to Purchaser, Purchaser shall pay to Sponsor's attorneys at closing an extra fee as set forth in the Plan. Sponsor, from time to time, may adjourn the date and hour for closing on written notice to Purchaser. In the event of such adjournment, a closing may be rescheduled by Sponsor upon written notice to Purchaser, which notice shall fix a new date, hour and place for the closing of title and will be given not less than two (2) business days prior to the new scheduled date and time for closing. 5.2 The closing of title shall occur only after or concurrently with the compliance with the prerequisites as set forth under "Terms of Sale" in Part I of the Plan. 5.3 The term "Closing Date" or "closing of title" or words of similar import, whenever used herein, shall mean the date designated by Sponsor on which the deed to the Unit is delivered to Purchaser. NY 72308628x2-2-
6. DELIVERY OF THE DEED AND POWER OF ATTORNEY. 6.1 At the closing of title, Sponsor shall deliver to Purchaser a bargain and sale deed with covenant against grantor's acts conveying title to the Unit to Purchaser. The deed shall be prepared by Sponsor in substantially the form set forth in Part II of the Plan and shall be executed and acknowledged by Sponsor in form for recording. Purchaser shall pay all New York State and New York City real property transfer taxes, and Sponsor and Purchaser shall duly execute a New York City Real Property Transfer Tax return and any other forms then required by Law, all of which shall be prepared by Sponsor. 6.2 At the closing of title and simultaneously with the delivery of the deed conveying the Unit to Purchaser, Purchaser shall execute and acknowledge a power of attorney to the Condominium Board, the Residential Board and Sponsor substantially in the form set forth in the Fourteenth Amendment to the Plan, 6.3 The deed and power of attorney to the Condominium Board, Residential Board and Sponsor shall be delivered to the representative of the title company insuring Purchaser's title (or, if no such representative is present, then to Sponsor's attorney) for recording in the City Register's Office, which recording shall be at Purchaser's expense. After being recorded, the deed shall be returned to Purchaser and the power of attorney shall be sent to the Managing Agent. 6.4 Sponsor shall deliver to Purchaser a certification stating that Sponsor is not a foreign person in the form then required by the Internal Revenue Service and each party shall execute, acknowledge and deliver to the other party such instruments, and take such other actions, as such other party may reasonably request in order to comply with Internal Revenue Code 6045(e), as amended, or any successor provision or any regulations promulgated pursuant thereto, insofar as the same requires reporting of information in respect of real estate transactions. 6.5 If Pu rchaser is a foreign government, Purchaser shall deliver to Sponsor the notification of approval to the transaction from the Department of State as required by the Foreign Missions Act, 27 U.S.C. 4305. 7. FEE TITLE. At the closing of title, Sponsor shall convey to Purchaser fee simple title to the Unit, free and clear of all encumbrances other than those expressly agreed to by Purchaser or set forth in Schedule A annexed hereto and made a part hereof. Any unpermitted encumbrance shall not be an objection to title if (a) the instrument required to remove it of record is delivered at or prior to the closing of title to the proper party or to Purchaser's title insurance company, together with the attendant recording or filing fee, if any, or (b) such other title insurance company licensed to do business in New York, is or would be willing, in a fee policy issued by it to the Purchaser, to insure Purchaser that it will not be collected out of the Unit if it is a lien, or will not be enforced against the Unit if it is not a lien. 8. CLOSING ADJUSTMENTS AND REAL ESTATE TAXES. NY 72308628v2-3-
8.1 Subject to Paragraph 15 hereof, the following adjustments shall be made as of midnight of the day preceding the Closing Date with respect to the Unit: (a) real estate taxes and assessments, if any (including water charges and sewer rents, if separately assessed), on the basis of the period for which assessed; and (b) Residential Common Charges for the month in which title closes; (c) accrued rent and any other charges pursuant to an interim lease or use and occupancy agreement, if any, covering the Unit. 8.2 If closing of title occurs before the tax rate is fixed, adjustment of taxes shall be based upon the latest tax rate applied to the most recent applicable assessed valuation. Installments for tax assessments due after the delivery of the deed, if any, shall be paid by Purchaser and shall not be considered a defect in title. If a Unit has not been separately assessed as of the Closing Date, the adjustments and collection of taxes under subsection 8.1(a) hereof and future tax payments shall be as described in the Section of the Plan entitled "Closing Costs and Adjustments." 8.3 If Sponsor obtains a refund for real estate taxes paid (or a credit for such taxes to be paid) on Purchaser's Unit, Purchaser and Sponsor will apportion the refund (as well as the costs and/or fees for obtaining the refund or credit) based on the percentage of time for which the refund or credit is obtained during which each party hereto owned the Unit in question. 8.4 The "Customs in Respect of Title Closings" recommended by The Real Estate Board of New York, Inc., as amended to date, shall apply to the adjustments and other matters therein mentioned except as otherwise provided herein. 8.5 Any errors or omissions in computing apportionments at closing shall be corrected and payment made to the proper party promptly after discovery. 8.6 Purchaser shall be required to pay the other closing costs which are Purchaser's responsibility as more particularly described in Part I of the Plan entitled "Closing Costs and Adjustments." 8.7 The provisions of this Article 8 shall survive the closing. 9. MORTGAGE TAX CREDIT. If Purchaser obtains a mortgage loan, the Purchaser will pay Sponsor a sum equal to the partial mortgage tax credit to which Purchaser may be entitled pursuant to Section 339-ee (2) of the Condominium Act, which sum will be paid as a reimbursement for the mortgage recording tax previously paid by Sponsor in connection with any existing mortgage(s). Alternatively, Sponsor may require, in its sole discretion, that if Purchaser finances the purchase of the Unit with a loan secured by a mortgage (the "Mortgage"), Purchaser must cause the lender making such loan to accept from the Sponsor an assignment of a portion of any mortgage securing the Property in an amount up to the Mortgage as determined by NY 7230S62Sv2-4-
Sponsor. Upon such assignment, the Mortgage will be exempt from mortgage recording tax under Section 255 of the Real Property Tax Law. Sponsor will be solely entitled to the benefits of the mortgage tax credit, which Purchaser receives as a result of such assignment. Accordingly, at the Closing, Purchaser will pay to Sponsor an amount equal to the mortgage recording tax savings resulting from such exemption. 10. INTENTIONALLY OMITTED. 11. DEPOSIT. The Deposit made pursuant to this Agreement is subject to the requirements of Section 71-a(3) of the State of New York Lien Law (the provisions of which are set forth in Part II of the Plan and deemed incorporated herein by reference) and Sections 352- e(2-b) and 352-h of the General Business Law of the State of New York, Any Deposit received from Purchaser will be held in accordance with the provisions of the Subsection entitled "Escrow and Trust Fund Requirements" under the Section entitled "Procedure to Purchase" set forth in Part I of the Plan. By signing this Agreement, Purchaser will not object and will be deemed to have agreed, without the need for a further written agreement, to the release of the Deposit to Sponsor in the event Sponsor and Purchaser close title under this Agreement. Sponsor is required by Law to submit a Form 1099 to the Internal Revenue Service reporting interest earned on Purchaser's Deposit, if any. Purchaser will be taxed accordingly on such interest. 12. BINDING EFFECT OF DECLARATION, BY-LAWS AND RULES AND REGULATIONS. Purchaser hereby accepts and approves the Plan (including the Declaration, By- Laws and Rules and Regulations, if any, contained therein) and agrees to abide by and be bound by the terms and conditions thereof. 13. AGREEMENT SUBJECT TO MORTGAGE. No encumbrance shall arise against the Property as a result of this Agreement or any monies deposited hereunder. In furtherance and not in limitation of the provisions of the preceding sentence, the provisions of this Agreement are and shall be subject and subordinate to the lien of any mortgage, including, but not limited to, any construction or building loan mortgage heretofore or hereafter made, any advances heretofore or hereafter made thereon and any payments or expenses made or incurred or which hereafter may be made or incurred, pursuant to the terms thereof, or incidental thereto, or to protect the security thereof, to the full extent thereof, without the execution of any further legal documents by Purchaser. This subordination shall apply in all cases, regardless of the timing of, or cause for, the making of advances of money or the incurring of expenses. Sponsor shall, at its option, either satisfy such mortgages or obtain a release of each Unit and its undivided interest in the Common Elements from the lien of such mortgages on or prior to the Closing Date, unless Purchaser voluntarily assumes such mortgage or consents to the continuation of the lien thereof. The existence of any mortgage or mortgages encumbering the Property, or portions thereof, other than the Unit and its (their) undivided interest in the Common Elements, shall not constitute an objection to title or excuse Purchaser from completing payment of the Purchase Price or performing all of its other obligations hereunder or be the basis of any claim against, or liability of, Sponsor, provided that any such mortgage(s) is subordinated to the Declaration. 14. PURCHASER'S REPRESENTATIONS. Purchaser represents that Purchaser has full right and authority to execute this Agreement and perform Purchaser's obligations NY 72308628v2-5-
hereunder. If Purchaser is not a natural person, Purchaser agrees to deliver at any time, such documents evidencing Purchaser's authority as may be required by Purchaser's title company or Sponsor. Purchaser acknowledges and agrees that Sponsor may desire to obtain certain information about Purchaser's (or Purchaser's principals) character, general reputation, personal characteristics and mode of living prior to counter-executing this Agreement. In order to permit Sponsor to comply with the requirements of the Fair Credit Reporting Act, Purchaser hereby authorizes Sponsor, if Sponsor elects in its sole discretion, to obtain such information and to retain a credit reporting agency to obtain such information. The Controlling Party (as defined in Paragraph 24) is and shall remain personally liable for Purchaser's obligations under this Agreement. 15. DEFAULT BY PURCHASER. 15.1 The following shall each constitute an "Event of Default" hereunder: (i) Subject to Section 4.2, Purchaser's failure to pay the Deposit or the Balance on the date designated by Sponsor for closing the Unit; or (ii) Purchaser's failure to duly complete and sign before a notary public and deliver at closing the power of attorney or the New York State and City transfer tax returns; or (iii) If Purchaser is or becomes the tenant of the Unit, Purchaser's failure to pay rent or to otherwise comply with Purchaser's lease or tenancy obligations; or (iv) If Purchaser is or becomes the tenant of the Unit and Purchaser vacates or abandons the Unit; or (v) Purchaser's assignment of any of Purchaser's property for the benefit of creditors, or Purchaser's filing a voluntary petition in bankruptcy; or (vi) If a non-bankruptcy trustee or receiver is appointed over Purchaser or Purchaser's property, or an involuntary petition in bankruptcy is filed against Purchaser; or (vii) If a judgment or tax lien is filed against Purchaser and Purchaser does not pay or bond the same; or (viii) Purchaser's failure to pay any closing costs set forth in this Agreement or the Plan, on the Closing Date designated by Sponsor; or (ix) The failure to pay, perform or observe any of Purchaser's other obligations hereunder. 15.2 TIME IS OF THE ESSENCE with regard to Purchaser's obligations to pay the Balance and to perform Purchaser's other obligations under this Agreement. If there is any Event of Default, Sponsor shall give notice to Purchaser of such Event of Default. If such NY 72308628v2-6-
Event of Default shall not be cured within thirty (30) days thereafter, TIME BEING OF THE ESSENCE, Sponsor may either (i) terminate this Agreement by notice of termination to Purchaser and retain the Deposit and all other sums deposited by Purchaser under this Agreement (including, without limitation, any amounts deposited and/or paid for special work to the Unit), together with interest earned thereon as liquidated damages, it being acknowledged and agreed that it is extremely difficult and impracticable to ascertain the extent of detriment to Sponsor caused by the breach by Purchaser under this Agreement and the failure of the consummation of the transaction contemplated by this Agreement or the amount of compensation Sponsor should receive as a result of Purchaser's breach or default; or (ii) bring an action against Purchaser for specific performance; or (iii) terminate this Agreement by notice of termination to Purchaser and bring an action for damages; or (iv) exercise all other remedies available to Sponsor at law or in equity. Upon termination of this Agreement, Purchaser shall have no further rights thereunder, and Sponsor may sell the Unit to any third party as though this Agreement had never been made (without any obligation to account to Purchaser for any part of the proceeds of such sale). 15.3 If Purchaser fails for any reason to close title to the Unit on the originally scheduled Closing Date (a) the closing apportionments described in Section 8 of this Agreement will be made as of midnight of the day preceding the originally scheduled Closing Date, regardless of when the actual closing of title occurs, and (b) Purchaser will be required to pay to Sponsor in addition to the other payments to be made to Sponsor under this Agreement and the Plan, an amount equal to 0.03% of the Purchase Price for each day starting from (and including) the originally scheduled Closing Date to (and including) the day before the actual Closing Date. If, through no fault of Purchaser, Sponsor postpones the originally scheduled Closing Date, these provisions shall apply to the rescheduled Closing Date if Purchaser fails for any reason to close title to the Unit on the rescheduled Closing Date. Agreement. 15.4 The provisions of this Section 15 shall survive the termination of this 16. INTENTIONALLY OMITTED 17. SPONSOR'S INABILITY TO CONVEY THE UNIT. If Sponsor is unable to deliver title to the Unit to Purchaser in accordance with the provisions of this Agreement and the Plan, Sponsor will not be obligated to bring any action or proceeding or otherwise incur any cost or expense of any nature whatsoever in excess of its obligations set forth in the Plan in order to cure such inability, and, in such case, if Sponsor notifies Purchaser of its refusal to cure such inability and if Purchaser is not in default hereunder, Purchaser's sole remedy will be to either (a) take title to the Unit subject to such inability (without any abatement in, or credit against, the Purchase Price, or any claim or right of action against Sponsor for damages or otherwise) or (b) terminate this Agreement. If Purchaser so elects to terminate this Agreement, Sponsor will, within thirty (30) days after receipt of notice of termination from Purchaser, return to Purchaser the Deposit paid by Purchaser hereunder, together with interest earned thereon, if any, subject to Sponsor's rights to retain certain funds deposited by Purchaser for special work in the Unit, as more particularly described in the Section of the Plan, entitled "Terms of Sale," and, upon making such payment, this Agreement will be terminated and neither party hereto will have any further rights, obligations or liability to or against the other under this Agreement or the Plan. The foregoing remedy must be exercised by notice of Purchaser in writing to Sponsor within NY 72308628v2-7-
fifteen (15) days after the giving of Sponsor's notice of refusal to cure such inability, failing which it will be conclusively deemed that Purchaser elected the remedy described in clause (a) above (i.e., to acquire title subject to such inability). 18. FIXTURES, APPLIANCES AND PERSONAL PROPERTY. Only those fixtures, appliances and items of personal property which are described in the Description of the Property in Part II of the Plan as being part of the Unit are included in the sale of the Unit pursuant to the provisions of this Agreement. At the Closing, Sponsor shall transfer to Purchaser any assignable warranties and undertakings received by Sponsor which relate to appliances, equipment or fixtures located in the Unit. 19, ACCEPTANCE OF CONDITION OF PROPERTY. Purchaser shall accept title (without abatement in, or credit against, the Purchase Price or any provision for escrow deposits at the closing of title) notwithstanding the failure to complete construction of (a) the "punch list" items in the Unit (b) other Units or (c) the Common Elements of the Property which do not prevent Purchaser's use of the Unit, provided that Sponsor delivers a temporary certificate of occupancy for the Unit. The Unit and the fixtures and personal property contained therein, if any, are being sold and delivered as described in the Plan, at the time of transfer of title to such Unit, unless Sponsor and Purchaser otherwise agree or except as otherwise provided herein. Sponsor will maintain each Unit, and the fixtures and personality contained therein, up to the time of the transfer of title to the Unit in question. Purchaser shall have the right to inspect the Unit prior to the Closing Date, on such date and at such time provided for by Sponsor and accompanied by a representative of Sponsor. Sponsor shall provide Purchaser with at least five (5) business days notice that the Unit is available for inspection and Sponsor reserves the right to postpone and/or reschedule any scheduled inspections of the Unit upon one (1) business day's notice and Sponsor reserves the right to schedule additional inspections as Sponsor deems necessary or appropriate. If Purchaser fails to inspect the Unit within said period(s), Purchaser shall be deemed to have accepted the Unit in good condition and in accordance with the terms of the Plan. The failure of Sponsor to complete "punch list" type work shall not be a ground for Purchaser delaying the Closing provided that Sponsor agrees to complete such work promptly after Closing. Except as expressly provided in this Agreement or the Plan, including but not limited to subparagraph (f) of the subsection of the Plan entitled "Sponsor's Obligations with Respect to the Building" of the section of the Plan entitled "Rights and Obligations of Sponsor," Sponsor shall have no obligation to repair or improve the Unit, any portion of the Property, or the appliances, equipment or fixtures attached to or used in connection with the Unit or the Property. Sponsor is obligated to construct the Building in accordance with all applicable codes and filed building plans and specifications as well as the provisions of the Plan. The Housing Merchant Implied Warranty Law (General Business Law Article 36-B) is not applicable to this offering. Sponsor is not making any express or implied warranties of fitness for a particular purpose, merchantability or habitability. Unless caused by a violation of the sound transmission or other noise code or other applicable code, there is no warranty as to sound transmission. Unless caused by a violation of an applicable code with regard to the ventilation system or other applicable code, there is no warranty as to odors. Unless caused by a code violation, there is no warranty with respect to mold, mildew, spores, fungi or other toxins. There is no warranty as to view or light quality. In the event of any conflict between the foregoing disclaimers and Sponsor's obligations to construct the Building in accordance with all applicable codes and filed building plans and specifications as well as the provisions of the Plan, Sponsor's obligations to NY 723 8628v2 -S-
construct the Building in accordance with all applicable codes and filed building plans and specifications as well as the provisions of the Plan will control. In no event will Sponsor be liable for incidental or consequential damages (whether based on negligence, breach of contract, warranty, or otherwise). See the Section entitled "Rights and Obligations of Sponsor" in Part I of the Plan for further discussion. Sponsor will not be obligated to correct, and will not be liable to any Board or Unit Owner as a result of any defects in construction, or in the installation or operation of any mechanical equipment, appliances, other equipment, finishes, materials or fixtures (including kitchen appliances and bathroom fixtures), except as more as specifically set forth in the Section of the Plan entitled "Rights and Obligations of Sponsor." Notwithstanding the foregoing, Sponsor will be obligated to repair abnormal scratches in plastic laminate, vitreous china, natural stone, wood, porcelain and metallic surfaces existing as of the Closing Date by filling or refinishing the same, but Sponsor will not be obligated to replace any such surfaces. The provisions of this Article 19 shall survive the closing of title. 20. DAMAGE TO THE UNIT. If between the date of this Agreement and the closing of title the Unit is damaged by fire or other casualty, the following shall apply: 20.1 The risk of loss to the Unit by fire or other casualty is assumed by Sponsor until the earlier of closing of title or possession of the Unit by Purchaser, but without any obligation or liability by Sponsor to repair or restore the Unit. If Sponsor elects to repair or restore the Unit, this Agreement shall continue in full force and effect, Purchaser shall not have the right to reject title or receive a credit against, or abatement in, the Purchase Price and Sponsor shall be entitled to a reasonable period of time within which to complete the repair or restoration. Any proceeds received from insurance or in satisfaction of any claim or action in connection with such loss shall, subject to the rights of the respective Boards and other Unit Owners if the Declaration has theretofore been recorded, belong entirely to Sponsor and, if such proceeds are paid to Purchaser, Purchaser shall promptly upon receipt thereof turn them over to Sponsor. The provisions of the preceding sentence shall survive the closing of title. 20.2 In the event Sponsor notifies Purchaser that it does not elect to repair or restore the Unit, or, if the Declaration has been recorded prior thereto and the Unit Owners do not resolve to make such repairs or restoration pursuant to the By-Laws, this Agreement will be deemed canceled and of no further force and effect and Sponsor will return to Purchaser the Deposit paid by Purchaser hereunder, together with interest earned thereon, if any, subject to Sponsor's rights to retain certain funds deposited by Purchaser for special work in the Unit, as more particularly described in the Section of the Plan, entitled "Terms of Sale," and neither party hereto will have any further rights, obligations or liability to or against the other hereunder or under the Plan, except that if Purchaser is then in default hereunder (beyond any applicable grace period), Sponsor will retain all such sums deposited by Purchaser hereunder, together with any interest earned thereon, as and for liquidated damages. 21. NO REPRESENTATIONS. Purchaser acknowledges that Purchaser has not NY 72308628v2-9-
relied upon any architect's plans, sales plans, selling brochures, advertisements, representations, warranties, statements or estimates of any nature whatsoever, whether written or oral, made by Sponsor, Selling Agent or otherwise, including, but not limited to, any relating to the description or physical condition of the Property, the Building or the Unit, or the size or the dimensions of the Unit or the rooms therein contained or any other physical characteristics thereof, the services to be provided to Unit Owners, the estimated Residential Common Charges allocable to the Unit, the estimated real estate taxes on the Unit, the right to any income tax deduction for any real estate taxes or mortgage interest paid by Purchaser, the right to any income tax credit with respect to the purchase of the Unit, or any other data or information, except as herein or in the Plan specifically represented, Purchaser having relied solely on such Purchaser's own judgment and investigation in deciding to enter into this Agreement and purchase the Unit. No person has been authorized to make any representations on behalf of Sponsor except as herein or in the Plan specifically set forth. No oral representations or statements shall be considered a part of this Agreement. Sponsor makes no representation or warranty as to the work, materials, appliances, equipment or fixtures in the Unit, the Common Elements or any other part of the Property other than as set forth herein or in the Plan. The provisions of this Article shall survive the closing of title or earlier termination of this Agreement. 22. PROHIBITION AGAINST ADVERTISING AND SELLING. Prior to the closing of title to the Unit, Purchaser shall not list the Unit for resale or rental with any broker and shall not advertise or otherwise offer, promote or publicize the availability of the Unit for sale or lease, without Sponsor's prior written consent. In addition, if Purchaser shall not be purchasing the Unit for its own occupancy, Purchaser may not advertise, list or sell the Unit for twelve (12) months after acquisition of the Unit. Such limitations shall not apply from and after the date that the Sponsor conveys title to all of the residential units in the Condominium. Any such conveyances in violation of the foregoing will be voidable by Sponsor. The provisions of this Article shall survive the closing of title or earlier termination of this Agreement. 23. BROKER. Purchaser represents to Sponsor that (collectively the "Broker") is [are] the only broker(s) or sales agent(s) with whom Purchaser has dealt in connection with this transaction, and Sponsor agrees to pay the commission earned by the Broker pursuant to a separate agreement. Purchaser agrees that should any claim be made against Sponsor for commissions by any broker, other than the Broker, on account of any acts of Purchaser or Purchaser's representatives, Purchaser will indemnify and hold Sponsor free and harmless from and against any and all liabilities and expenses in connection therewith, including reasonable legal fees. The provisions of this Article 23 shall survive the closing of title or earlier termination of this Agreement. 24. AGREEMENT MAY NOT BE ASSIGNED. 24.1 Purchaser does not have the right to assign this Agreement without the prior written consent of Sponsor. 24.2 If Purchaser is a corporation, partnership, limited liability company, trust or other legal entity, any direct or indirect sale, assignment, transfer, pledge, encumbrance or other disposition of any of the ownership interest of Purchaser (including without limitation, the stock, membership or beneficial interests of the stockholders, partners, members or beneficiaries NY 72308628v2-10-
of Purchaser or its stockholders, partners, members or beneficiaries) shall be considered an assignment of this Agreement and shall be subject to the provisions, prohibitions and terms of this Article concerning assignment of this Agreement. For purposes of this Agreement, it is the intent of the parties) that the individual(s) controlling Purchaser shall be deemed to be (the "Controlling Party"). By execution of this Agreement, it is acknowledged and agreed that the Controlling Party is and shall remain personally liable for Purchaser's obligations under this Agreement. 24.3 If Sponsor, in its sole discretion, consents to a Purchaser's request for an assignment of this Agreement, or for the addition, deletion or substitution of names on this Agreement, then Purchaser will be required to pay Sponsor's attorneys a fee of $1,000.00, in advance, for preparation of an assignment agreement. 24.4 Any purported assignment by Purchaser in violation of this Agreement will constitute an Event of Default hereunder and will be voidable by Sponsor. Sponsor's refusal to consent to an assignment will not entitle Purchaser to cancel or terminate this Agreement or give rise to any claim for damages against Sponsor. 24.5 The provisions of this Article shall survive the closing of title or earlier termination of this Agreement. 25. BINDING EFFECT. This Agreement shall not be binding on Purchaser or Sponsor until a fully executed counterpart hereof has been delivered to Purchaser. If this Agreement is not accepted within thirty (30) days after delivery by Purchaser of an executed Agreement by the delivery to Purchaser of a fully executed counterpart, this Agreement shall be deemed to have been rejected and canceled and the Deposit paid on the execution hereof shall be promptly returned to Purchaser. 26. NOTICES. Any notice, request, letter, consent or other communication hereunder or under the Plan (other than amendments to the Plan which shall be served in accordance with the Plan or documents for which the method of notice and or delivery is otherwise set forth in the Plan) shall be in writing and delivered by regular mail as well as hand delivered or sent, postage prepaid, by registered or certified mail, by facsimile or by Federal Express or other reputable overnight courier, to Purchaser at the address given at the beginning of this Agreement, and to Sponsor at the address given at the beginning of this Agreement, with a copy to Stroock & Stroock & Lavan, LLP, 180 Maiden Lane, New York, NY 10038, Attn: Michel Evanusa, Esq., in the same maimer as notice is given to Sponsor, or to such other address as either party may hereafter designate to the other in writing. All notices, requests or other communications which may be or are required to be given, served or sent by any party hereto to any other party hereto shall be deemed delivered (a) upon delivery, if delivered in person, (b) one (1) business day after the date deposited for overnight delivery with any reputable overnight courier service, or (c) five (5) calendar days after the date deposited in any post office or mail depository regularly maintained by the United States Postal Office and/or sent by regular, registered or certified mail, postage paid. However, with respect to any "change of address" notification, the date of actual receipt of such notification shall be deemed the date of such notice. Any notice either of the parties hereto receives from the other party's attorneys shall be deemed to be notice from such party itself (including, without limitation, any notices of closing or default which Sponsor's NY 72308628v2-11-
counsel is hereby expressly designated and empowered to issue). A failure by Purchaser to acknowledge receipt of any notice, request, letter, consent or other communication hereunder shall not in anyway invalidate such communication). Notwithstanding anything to the contrary, notices regarding closing costs or ministerial matters, the rescheduling of Closing Dates or the scheduling or rescheduling of inspections may be made by facsimile or electronic mail to each party's attorneys. 27. JOINT PURCHASERS. The term "Purchaser" shall be read as "Purchasers" if more than one person are purchasers, in which case their obligations shall be joint and several. 28. PERFORMANCE BY AND LIABILITY OF SPONSOR. Purchaser's acceptance of the deed for the Unit shall be deemed to be a full performance and discharge of each and every agreement and obligation on the part of Sponsor to be performed pursuant to the provisions of this Agreement, the Plan, 13 NYCRR, Part 20 (the regulations of the Attorney General of the State of New York governing the acceptance for filing of the Plan) and General Business Law 352-e, except those (if any) herein or therein expressly stated to survive delivery of such deed. The provisions of this Article shall survive the closing of title. 29. FURTHER ASSURANCES. Either party shall execute, acknowledge and deliver to the other party such instruments, and take such other actions, in addition to the instruments and actions specifically provided for herein, as such other party may reasonably request in order to effectuate the provisions of this Agreement or of any transaction contemplated herein or to confirm or perfect any right to be created or transferred hereunder or pursuant to any such transaction. The provisions of this Article shall survive the closing of title. 30. AGREEMENT NOT CONTINGENT UPON FINANCING. The terms and provisions of this Agreement and Purchaser's obligations hereunder are not contingent upon Purchaser securing financing of the Purchase Price (or any portion thereof) stated in Section 4 of this Agreement, and Purchaser understands and agrees that Purchaser's failure to obtain such financing will not relieve Purchaser of Purchaser's obligations hereunder. Purchaser further understands and agrees that if Purchaser chooses to finance Purchaser's purchase of the Unit through a lending institution and obtain a commitment therefrom, neither a subsequent change in the terms of such commitment, the expiration or other termination of such commitment, nor any change in Purchaser's financial status or condition shall release or relieve Purchaser of Purchaser's obligations pursuant to this Agreement. 31. COSTS OF ENFORCING AND DEFENDING AGREEMENT. Purchaser shall be obligated to reimburse Sponsor for any legal fees and disbursements incurred by Sponsor in enforcing or defending Sponsor's rights under this Agreement or, in the event Purchaser defaults under this Agreement beyond any applicable grace period, in terminating this Agreement or otherwise enforcing Purchaser's obligations hereunder. The provisions of this Article shall survive the closing of title or earlier termination of this Agreement. 32. SEVERABILITY. If any provision of this Agreement or the Plan is invalid or unenforceable as against any person or under certain circumstances, the remainder of this Agreement or the Plan and the applicability of such provision to other persons or circumstances shall not be affected thereby. Each provision of this Agreement or the Plan, except as otherwise NY 72308628v2-12-
herein or therein provided, shall be valid and enforced to the fullest extent permitted by Law. The provisions of this Article shall survive the closing of title or earlier termination of this Agreement, 33. STRICT COMPLIANCE, Any failure by Sponsor to insist upon the strict performance by Purchaser of any of the provisions of this Agreement shall not be deemed a waiver of any of the provisions hereof, and Sponsor, notwithstanding any such failure, shall have the right thereafter to insist upon the strict performance by Purchaser of any and all of the provisions of this Agreement to be performed by Purchaser. The provisions of this Article shall survive the closing of title or earlier termination of this Agreement. 34. GOVERNING LAW. The provisions of this Agreement shall be governed by and construed in accordance with the Laws of the State of New York applicable to agreements made and to be performed wholly in the State of New York, without regard to principles of conflicts of Law. Any action brought in connection with this Agreement or the subject matter hereof, shall be in a court of competent jurisdiction located within New York County. The provisions of this Article shall survive the closing of title or earlier termination of this Agreement. 35. WAIVER OF JURY. EXCEPT AS PROHIBITED BY LAW, THE PARTIES SHALL, AND THEY HEREBY DO, EXPRESSLY WAIVE TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF, OR CONNECTED WITH, OR RELATING TO, THE PLAN THIS AGREEMENT OR THE RELATIONSHIP CREATED HEREBY. THE PROVISIONS OF THIS ARTICLE SHALL SURVIVE THE CLOSING OF TITLE OR EARLIER TERMINATION OF THIS AGREEMENT. 36. ENTIRE AGREEMENT. This Agreement together with the Plan constitutes the entire agreement between the parties and supersedes any and all understandings and agreements between the parties with respect to the subject matter hereof. The provisions of this Article shall survive the closing of title or earlier termination of this Agreement. 37. CERTAIN REFERENCES. A reference in this Agreement to any one gender, masculine, feminine or neuter, includes the other two, and the singular includes the plural, and vice versa, unless the context otherwise requires. The terms "herein," "hereof' or "hereunder" or similar terms used in this Agreement refer to this entire Agreement and not to the particular provision in which the term is used, unless the context otherwise requires. Unless otherwise stated, all references herein to Articles, Sections, subsections or other provisions are references to Articles, Sections, subsections or other provisions of this Agreement. The provisions of this Article shall survive the closing of title or earlier termination of this Agreement. 38. CAPTIONS. The captions in this Agreement are for convenience of reference only and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof. The provisions of this Article shall survive the closing of title or earlier termination of this Agreement. 39. RULE OF CONSTRUCTION. There shall be no presumption against the draftsman of this Agreement or the Plan. The provisions of this Article shall survive the closing NY 72308628x2-13-
of title or earlier termination of this Agreement. 40. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall bind and inure to the benefit of Purchaser and Purchaser's heirs, legal representatives, successors and permitted assigns and shall bind and inure to the benefit of Sponsor and its successors and assigns. 41. NO ORAL CHANGES. This Agreement cannot be changed or terminated and no provision waived orally. ANY CHANGES OR ADDITIONAL PROVISIONS MUST BE SET FORTH IN A RIDER ATTACHED HERETO OR IN A SEPARATE WRITTEN AGREEMENT SIGNED BY THE PARTIES HERETO OR BY AN AMENDMENT TO THE PLAN. 42. COUNTERPART SIGNATURES. This Agreement may be executed in any number of counterparts, any one of which shall constitute an original of this Agreement. When counterparts have been executed by all parties, they shall have the same effect as if the signatures to each counterpart were upon the same documents and shall be deemed valid as originals. The parties agree that all such signatures may be transferred to a single document upon the request of any party. This Agreement shall not be binding unless and until it shall be fully executed and delivered by all parties hereto. NY 723 8628v2-14-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date below. Date: (To be inserted after execution by Sponsor) SPONSOR: CRP/EXTELL Parcel H, L.P. By: CRPIExtell 100 Riverside GP, LLC, its general partner By: Name: Title: PURCHASER(S): For purposes of this Agreement, it is acknowledged and agreed that the undersigned is the controlling individual of the Purchaser and shall remain personally liable for Purchaser's obligations under this Agreement: (Social Security or Federal I.D. Number): Telephone No.: [Insert Name] (Social Security or Federal I.D. Number): Telephone No.: NY 72308628v2-15-
SCHEDULE A PERMITTED ENCUMBRANCES 1. Building restrictions and zoning and other regulations, resolutions and ordinances and any amendments thereto now or hereafter adopted. 2. Any state of facts which an accurate survey of the Property would show, provided such state of facts would not make title to the Unit uninsurable, except as otherwise permitted herein. 3. The terms, burdens, covenants, restrictions, conditions, easements and rules and regulations, all as set forth in the Declaration, the By-Laws and the Rules and Regulations, the Power of Attorney from the Purchaser to the Residential Board, and the Floor Plans; as all of the same may be amended from time to time. 4. Consents by the Sponsor or any former owner of the Land for the erection of any structure or structures on, under or above any street or streets on which the Property may abut. 5. Any easement or right of use in favor of any utility company for construction, use, Maintenance or repair of utility lines, wires, terminal boxes, mains, pipes, cables, conduits, poles and other equipment and facilities on, under and across the Property. 6. Revocability of licenses for vault space, if any, under the sidewalks and streets. 7. Encroachments of stoops, areas, cellar steps or doors, trim, copings, retaining walls, bay windows, balconies, sidewalk elevators, fences, fire escapes, cornices, foundations, footings and similar projections, if any, on, over, or under the Property or the streets or sidewalks abutting the Property, and the rights of governmental authorities to require the removal of any such projections and variations between record lines of the Property and retaining walls and the like, if any. 8. Leases and service, Maintenance, employment, concessionaire and license agreements, if any, of other Units or portions of the Common Elements. 9. The lien of any unpaid Common Charge, real estate tax, water charge or sewer rent, or vault charge, provided the same are adjusted at the closing of title. 10. The lien of any unpaid assessment payable in installments (other than assessments levied by the Residential Board), except that the Sponsor shall pay all such assessments due prior to the Closing Date (with the then current installment to be apportioned as of the Closing Date) and the Purchaser shall pay all assessments due from and after the Closing Date. 11. Any declaration or other instrument affecting the Property which the Sponsor deems necessary or appropriate to comply with any Law or requirement of the Department of Buildings, the City Planning Commission, the Board of Standards and Appeals, or any other public authority, applicable to the demolition, construction, alteration, repair or restoration of the Building. NY 72308628v2-16-
12. Any encumbrance as to which a title insurance company, which is a member of the New York Board of Title Underwriters, would be willing, in a fee policy issued by it to the Purchaser, to insure the Purchaser that such encumbrance (1) will not be collected out of the Unit if it is a lien or (2) will not be enforced against the Unit if it is not a lien. 13. Any other encumbrance, covenant, casement, agreement, or restriction against the Property other than a mortgage or other lien for the payment of money, which does not prevent the use of the Residential Unit for residential purposes. 14. Any lease covering the Unit made from the Sponsor to the Purchaser. 15. Any violation against the Property (other than the Unit) which is the obligation of the Residential Board, Non-Residential Board, Condominium Board, or another Unit Owner to correct. 16. Declaration of Easements set forth in Part 11 of the Plan. Plan. 17. Any title exceptions noted in the Specimen Title Policy set forth in Part II of the NY 72308628v2-17-
STORAGE BIN RIDER TO AGREEMENT Re: ("Purchaser") Storage Bin No. Avery 100 Riverside Boulevard New York. New York 10069 THIS RIDER TO AGREEMENT made as of the day of by and between CRP/EXTELL Parcel H, L.P., a Delaware limited partnership, having an office at cfo Penmark Realty Corporation, 800 Third Avenue, New York, New York 212-496-7504 ("Sponsor") and, having an address at, ("Purchaser"). WITNESSETH: 1. This Rider (the "Rider") amends and modifies that certain Agreement (the "Agreement") by and between CRPIEXTELL Parcel H, L.P. ("Sponsor") and Purchaser with respect to the above referenced Unit in the condominium known as Avery located at 100 Riverside Boulevard, New York, New York, In case of any inconsistencies between any of the terms and conditions of the Agreement, including any handwritten modifications thereto, and the terms and conditions of this Rider, the terms and conditions of this Rider shall prevail. All of the paragraphs and provisions contained in this Rider are incorporated into the Agreement and made a part thereof with the same force and effect as if therein originally contained. 2. (a) Upon and subject to the terms and conditions set forth in this Rider, Sponsor agrees to sell and grant, and Purchaser agrees to purchase a license to use a storage bin designated as Storage Bin (the "Storage Bin") simultaneously with the closing of title to the Unit. The license to use the Storage Bin (the "Storage Bin License") shall be substantially in the form set forth in Part II of the Condominium Offering Plan. The Purchase Price for the Storage Bin License is $ ("Storage Bin Price") which is separate from and in addition to the Purchase Price for the Unit. The Storage Bin Price shall be paid at the closing of title to the Unit by Purchaser delivering a good certified check of Purchaser or official bank check payable to Sponsor or such other party as Sponsor may designate upon not less than two (2) days notice. Purchaser shall be responsible for the payment of transfer and other taxes, if any, that are associated with the Storage Bin License. (b) A default by Purchaser under this Rider shall constitute a default under the Agreement for the Unit and that any other default by Purchaser under the Agreement for the Unit shall constitute a default under this Rider entitling Sponsor to those remedies as more fully described in the Agreement and the Plan. (c) Purchaser acknowledges and agrees that the Storage Bin may not be ready for use andlor occupancy at the time of the closing of title to the Unit and that notwithstanding such event, Purchaser shall remain obligated to close title to the Unit and purchase the Storage Bin License. In such event the Storage Bin Price shall be paid to Escrow Agent and Storage Bin NY 723 8628x2-18-
License shall be executed at Closing and the Storage Bin Price and Storage Bin License shall be held in escrow by the Escrow Agent. Upon notification from Sponsor that the Storage Bin is available for use, Escrow Agent shall release the Storage Bin Price to Sponsor with interest earned thereon, if any, and shall deliver Storage Bin License to Purchaser. 3. The captions in this Rider and the Agreement are for convenience of reference only and in no way define, limit or describe the scope of this Rider or the Agreement or the intent of any provision hereof. IN WITNESS WHEREOF, the parties have executed this Rider as of the date written hereinbelow. DATE: (To be inserted by Sponsor after countersignature by Sponsor) SPONSOR CRP/EXTELL Parcel H, L.P. By: CRP/Extell 100 Riverside GP, LLC, its general partner By: Name: Title: PURCHASER NY 72348628v2-19-
EXHIBIT B POWER OF ATTORNEY NY 71867920v4
A. Caution to the Principal, UNIT OWNER'S POWER OF ATTORNEY Your Power of Attorney is an important document. As the "Principal"you give the person whom You choose (Your "Agent") authority to spend your money and sell or dispose of your property during your lifetime without telling you. You do not lose your authority to act even though you have given your Agent similar authority. When your Agent exercises this authority, he or she must act according to any instructions you have provided or, where there are no specific instructions, in your best interest. "Important Information for the Agent" at the end of this document describes your Agent's responsibilities. Your Agent can act on your behalf only after signing the Power of Attorney before a notary public. You can request information from your Agent at any time. If you are revoking a prior Power of Attorney by executing this Power of Attorney, you should provide written notice of the revocation to your prior Agent(s) and to the financial institutions where your accounts are located. Except as set forth herein, you can revoke or terminate your Power of Attorney at any time for any reason as long as you are of sound mind. If you are no longer of sound mind, a court can remove an Agent for acting improperly. Your Agent cannot make health care decisions for you. You may execute a "Health Care Proxy" to do this. The law governing Powers of Attorney is contained in the New York General Obligations Law, Article 5, Title 15. This Law is available at a law library, or online through the New York State Senate or assembly websites, w ww,senate.state.ny.us. or www.assembly. State.NY.US. If there is anything about this document that you do not understand, you should ask a lawyer of your own choosing to explain it to you, B. Designation of Agent Terms used in this Unit Owner's Power of Attorney which are used (a) in the declaration (the "Declaration") establishing a plan for condominium ownership of the premises known as Avery (the "Condominium") and by the street number 100 Riverside Boulevard under Article 9- B of the Real Property Law of the State of New York, dated December 6, 2007, and recorded in the Office of the Register of the City of New York New York, County of New York on December 12, 2007, under CRFN #2007000609967, as the same is amended, restated or supplemented at any time, or (b) in the By-Laws of the Condominium ("By-Laws") attached to, and recorded together with, the Declaration, as the same is amended, restated or supplemented at any time, shall have the salve meanings in this Power of Attorney as in the Declaration or the By-Laws. NY 72358831v1
I, (referred to herein as the "Principal") having an address at, am the owner of a Unit in the Condominium which is designated and described in the Declaration as Unit No. ("Unit") and also designated as Tax Lot in Block 1171 of Section 4 of the Borough of Manhattan on the Tax Map of the Real Property Assessment Department of The City of New York and on the Floor Plans, and hereby nominate, constitute and appoint Residential Board of Managers of Avery (the "Residential Board"), Condominium Board of Managers of Avery (the "Condominium Board") and CRP/Extell Parcel H., L.P. ("Sponsor") (each an "Agent", collectively "Agents"), as my Agent(s) for the purposes set forth below. The Agents designated to act under this Power of Attorney may act separately. I hereby nominate, constitute and appoint the persons who may from time to time constitute the Condominium Board and/or the Residential Board, as applicable, true and lawful attorneys-in-fact for the undersigned, coupled with an interest, with power of substitution, in their own names, as members of the Residential Board or the Condominium Board or in the name of their designee (corporate or otherwise), on behalf of all Residential Unit Owners, in accordance with such Unit Owners' respective interests in the Common Elements, subject to the provisions of the By-Laws then in effect, (1)(a) following due authorization by a Majority of Residential Unit Owners, to acquire or lease any Residential Unit, together with its Appurtenant Interests, from any Residential Unit Owner desiring to sell, convey, transfer, assign, surrender or lease the same, (b) to acquire any Residential Unit, together with its Appurtenant Interests, from any Owner who elects to surrender the same pursuant to the By-Laws, and (c) following due authorization by a Majority of Residential Unit Owners, to acquire any Residential Unit, together with its Appurtenant Interests, which becomes the subject of a foreclosure or other similar sale, all on such terms and at such price or rental, as the case may be, as said attorneys-in-fact shall deem proper, in the name of the Residential Board or its designee, corporate or otherwise, on behalf of all Residential Unit Owners, and, after any such acquisition or leasing, to convey, sell, lease, sublease, mortgage or otherwise deal with (but not vote the interest appurtenant thereto) any such Residential Unit so acquired by them, or to sublease any Residential Unit so leased by them without the necessity of further authorization by the Residential Unit Owners, on such terms as said attorneys-in-fact may determine, granting to said attorneys-in fact the power to do all things in the said premises which the undersigned could do if the undersigned were personally present, (2) upon determination by the Residential Board, to commence, pursue, appeal, settle and/or terminate administrative and certiorari proceedings to obtain reduced real estate tax assessments with respect to Residential Units, including retaining counsel and taking any other actions which the Residential Board deems necessary or appropriate, and (3) to execute, acknowledge and deliver (a) any declaration or other instrument affecting the Common Elements which the Condominium Board, with respect to the General Common Elements and the Residential Board with respect to the Residential Section deem necessary or appropriate to comply with any ordinance, regulation, zoning resolution or requirement of the Department of Buildings, the City Planning Commission, the Board of Standards and Appeals, or any other public authority, applicable to the Maintenance, demolition, construction, alteration, repair or restoration of the General Common Elements or the Residential Section as the case may be, (b) any consent, covenant, restriction, easement or declaration, or any amendment thereto, affecting the Residential Section which the Residential Board deems necessary or appropriate or (c) any NY 72358831v [ 2